Rajesh Agarwal , Kolkata V. ITO, Ward - 31(1), Kolkata , Kolkata

MA 185/KOL/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 3983 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 11-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANIKESH BANERJEE
• Keywords: Unexplained cash credit; Business expenditure; Additional evidence; Deemed dividend; Capital Gains
• Section: 2(22)(e); 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER (MISC. APPLICATION) M.ANO.185/KOL/2019 (ARISING OUT ITA NO.1625/KOL/2018) / ASSESSMENT YEAR:2012-13 ITA NO.1625/KOL/2018 / ASSESSMENT YEAR: 2012-13 SHRI RAJESH AGARWAL 88/2A, RAFI AHMED KIDWAI ROAD, 5 TH FLOOR, KOLKATA-700 016 [ PAN NO. ACXPA 1705 B ] / V/S . INCOME TAX OFFICER WARD-31(1), AAYKAR BHAWAN, 7 TH FLOOR, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI ANIKESH BANERJEE, ADVOCATE /BY RESPONDENT SHRI SUPRIYO PAL, JCIT-SR-DR ' /DATE OF HEARING 18-10-2019 ' /DATE OF PRONOUNCEMENT 08-11-2019 /O R D E R THIS ASSESSEES MISCELLANEOUS APPLICATION FILED U/ S. 254(2) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. SEEKS TO RE-CALL / R ECTIFY THE TRIBUNALS COMMON ORDER DATED 26.06.2019. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE ASSESSEES ONLY GRIEVANCE RAISED IN THE INST ANT MISCELLANEOUS APPLICATION IS THAT THE TRIBUNALS COMMON ORDER DATED 26.06.2019 H AS WRONGLY TREATED THE ASSESSEES APPEAL ITA NO.1625/KOL/2018 AS INVOLVING BOGUS LONG TERM CAPITAL GAINS ISSUE. MA NO.185/KOL/2019 & ITA NO.1625/KOL/2018 A.Y. 20 12-13 SRI RAJESH AGARWAL VS. ITO WD-31(3), KOL. PAGE 2 THE REVENUE IS IN FAIR ENOUGH IN NOT DISPUTING THE FACTUAL POSITION. I THEREFORE RECALL MY ORDER DATED 26.06.2019 FOR THIS PRECISE REASON A LONE. THIS ASSESSEES MISCELLANEOUS APPLICATION NO. 185/KOL/2019 IS ACCEP TED. 3. WITH THE CONSENT OF BOTH THE PARTIES, I NOW PROC EED TO DEAL WITH THE ASSESSEES MAIN APPEAL ITA NO.1625/KOL/2018. THE ASSESSEE HAS RAISED SIX SUBSTANTIVE GROUNDS CHALLENGING CORRECTNESS OF BOTH THE LOWER AUTHORITI ES ACTION INTER ALIA DISALLOWING U/S 24(B) INTEREST INCOME OF 1,28,5216/-, SET OFF LOSS OF 1,97,588/-, UNEXPLAINED CASH CREDITS ADDITION OF 3 LAKH IN THE NATURE OF LOANS FROM FOUR PERSONS SE C. 2(22)(E) DEEMED DIVIDEND ADDITION OF 4.40 LAKH INTEREST EXPENDITURE OF 1.44 LAKH AND VARIOUS OTHER HEAD(S) OF EXPENDITURE; RESPECTIVELY. MR. BAN ERJEE FIRST OF ALL STATES AT THE BAR THAT THE ASSESSEE NO MORE WISHES TO PRESS FOR HIS F IRST AND LAST SUBSTANTIVE GROUNDS. I THEREFORE CONFIRM BOTH THE LOWER AUTHORITIES ACTIO NS DISALLOWING THESE TWO HEAD(S) OF INTEREST AND OTHER BUSINESS EXPENSES. 4. COMING TO THE SECOND ISSUE OF SET OFF BUSINESS L OSSES, BOTH PARTIES ARE AD IDEM B EFORE ME THAT THE SAME REQUIRES FACTUAL RECONCILIAT ION REGARDING THE CORRECT FIGURES OF BUSINESS LOSS CARRIED FORWARD FROM EARLIER ASSESSME NT YEARS. I THEREFORE RESTORE THIS SECOND ISSUE BACK TO THE ASSESSING OFFICER FOR AFRE SH ADJUDICATION ON MERITS AFTER AFFORDING THREE EFFECTIVE OPPORTUNITIES OF HEARING. 5. IT FURTHER TRANSPIRES THAT ASSESSEES THIRD AND FOURTH SUBSTANTIVE GROUNDS AS UNEXPLAINED CASH CREDITS AND DEEMED DIVIDEND ADDITI ONS (SUPRA) ALSO DESERVE TO BE SENT BACK AS HE HAS FILED ADDITIONAL EVIDENCE FOR T HE FIRST TIME BEFORE THE TRIBUNAL WHICH REQUIRES FACTUAL VERIFICATION. I THEREFORE AC CEPT THE ASSESSEES INSTANT TWO GRIEVANCES FOR STATISTICAL PURPOSES. 6. LASTLY COMES THIS INTEREST DISALLOWANCE OF 1.44 LAKH. THE ASSESSEES ONLY CASE IS THAT HE HAD NOWHERE CLAIMED THE SAME IN THE COMP UTATION AND THEREFORE, THE SAME HAD BEEN WRONGLY DISALLOWED IN BOTH THE LOWER PROCE EDINGS. I ACCEPT THE ASSESSEES MA NO.185/KOL/2019 & ITA NO.1625/KOL/2018 A.Y. 20 12-13 SRI RAJESH AGARWAL VS. ITO WD-31(3), KOL. PAGE 3 INSTANT ARGUMENT IN PRINCIPLE AND LEAVE IT OPEN FOR THE ASSESSING OFFICER TO FINALIZE NECESSARY FACTUAL VERIFICATION. 7. THIS ASSESSEES APPEAL ITA NO.1625/KOL/2018 IS P ARTLY ALLOWED FOR STATISTICAL PURPOSES IN ABOVE TERMS. 8. THIS ASSESSEES MISCELLANEOUS APPLICATION MA NO. 185/KOL/2019 IS ALLOWED WHEREAS ASSESSEES MAIN APPEAL ITA NO.1625/KOL/2018 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 08/11/2018 SD/- (S.S. GODARA) JUDICIAL MEMBE R KOLKATA, *DKP/SR.PS & - 08/11/2018 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-SRI RAJESH AGARWAL 88/2A, RAFI AHMED KID WAI ROAD WELLINGTON, KO LKTA-13 2. /RESPONDENT-ITO WD-31(1) AAYKAR BHAWAN, 7 TH FLOOR, P-7 CHOWRINGHEE SQUARE, KOLKATA -700 069 3. ) * / CONCERNED CIT 4. * - / CIT (A) 5. ) , ' ) / DR, ITAT, KOLKATA 6. / GUARD FILE. BY ORDER/ , /TRUE COPY/ ' ),